Tuesday, July 13, 2010

On Constitutional Interpretation and the Opinions of Mankind

I've saidbefore that the Declaration of Independence, that extraordinary document, is not the law of the land. It's a campaign speech, a call to arms. It rouses and inspires. But it has no legal consequence. Still, you might think that those who believe the Constitution (the legal document) must be understood exclusively as things were thought to be in the just-recently-former Colonies of the late 1700s might attend to the words of that campaign speech.

I was reminded of that while reading this article by Robert Barnes on Sonia Sotomayor and her first term on the Supreme Court from Sunday's Washington Post.

Here's the part that caught my attention.

Republicans on the Senate Judiciary Committee are concerned that Sotomayor has not lived up to her pledges. At her hearings last summer, she told the committee that she considered the court's 2008 decision in District of Columbia v. Heller, which held for the first time that the Second Amendment protects an individual's right to gun ownership, to be "settled law." But when the court last month extended the Second Amendment's reach to local and state governments, Sotomayor joined a dissent that raised questions about whether Heller had been properly decided. Sens. Tom Coburn (R-Okla.) and John Cornyn (R-Tex.) accused Sotomayor of insincerely telling the senators what they wanted to hear.

And Coburn wrote to Sotomayor after she joined the majority opinion that declared juvenile life-without-parole sentences unconstitutional. He objected to the decision's having found support in the idea that the United States is virtually alone in allowing the punishment. "Its conclusion conflicts with your pledge to the Judiciary Committee and the American public 'not to use foreign law to interpret the Constitution,' " he wrote. Coburn acknowledged that the opinion did not rely on foreign law as a precedent.

They're right about Heller, though I'm not so sure that saying something is "settled" means as much as everyone seems to think it does. Whenever SCOTUS decides something, it's "settled." That's because the Court is final. But saying something is "settled" doesn't say much, if anything, about whether it was settled properly or whether the settlement ought to be allowed to remain on the books. Elena Kagan used the word so often at her hearings before the Committee that, if it were to be taken as an oath of permanence, the only case it might allow revisiting is Korematsu v. United States.

Anyhow, what struck me was that whole silly using foreign law thing.

I get that the Constitution is ours, not some other nation's. And I have no problem with the principle that the U.S. Constitution means what it means regardless of whether some other nation (or all other nations) think what it means is stupid or evil. Other nation's laws (even their Constitutions) cannot be and should not be binding on our interpretation of our Constitution.

The part I don't get is why those things can't ever be allowed to inform our decisions. Hell, if I were on the Court and thought that an advertisement in the Brooklyn Yellow Pages from 1947 could help me understand a provision of the Constitution (and no, I can't think of an instance where that would be so), I'd use it. Why in the world would I exclude from consideration what other countries do?

But that's really neither here nor there. I'm not on the Court. I don't want to be on the Court. (Sorry Barak, but you can take me off the short list for the next opening.) And my view of what to read doesn't much matter.

But Jefferson? Adams? Franklin? The Lees (Richard Henry and Francis Lightfoot)? The charmingly named Button Gwinnett? All the rest? Because here's the first paragraph of what they signed.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Notice that part about "a decent respect to the opinions of mankind"? They may or may not have had in mind only male property owners such as themselves, but those property owners included the ones in England and France and everywhere else in the world of the Enlightenment as they understood it. It sure wasn't just those in the being-declared-no-longer-to-be Colonies.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.